At the Pleasure of the Court

I was sitting in my home office yesterday, diligently preparing for my preliminary hearing that afternoon. The hearing was scheduled for 12:30. Around 10:30 I got a call from a friend of mine who works for the public defender’s conflict office:

“Hi Josh, I’m downtown at the city court building. Do you have a hearing scheduled down here today?”

My friend was in the courtroom when the court staff called two cases. One of the defendants hadn’t appeared. The other defendant, my client, was incarcerated. Before hiring me, my client had applied for the public defender, and so my friend had his name on her list. But she had it on her schedule for the afternoon session, not the morning session.

She told the court staff about the problem, as well as the prosecutor. The court staff told her that the case was in the morning pile, so it must be scheduled for the morning. The hearing commenced, and the court held the charges against my client. After the hearing, my friend saw my name on the DA’s file, listed as the attorney of record. That’s when she called me.

After filling me in, she summarized the hearing and told me she would get the transcript. It sounded like she did a good job and nailed the officer down to his testimony. But now I had my client’s family meeting me at the courthouse at 12:30 for a hearing they thought would happen. I hoped it still might. It was still a little before eleven, so I threw on my suit and raced downtown.

On the way downtown I called the courthouse and spoke to the clerk. In fact, it was the same woman I had spoken to a few weeks ago. It’s a court I’m unfamiliar with, so I had called with some questions about local procedures. She remembered me, and I filled her in on the situation. Confused, she pulled up the electronic docket. As I knew, the case was listed for 12:30. My appearance was listed as the attorney of record, along with a phone number.

“That’s strange,” she said. I could tell she was still reading. I assumed she found the same thing I did when I checked the docket before I left. “It says here the case was rescheduled to 8:00 a.m., but that happened this morning. Also, you were moved to inactive counsel.” I asked who makes those changes, and she told me it is the staff person sitting in the courtroom with the judge.

So, by the time I got to the courthouse a little after eleven, I knew a few things had happened. In order to have the hearing, the court official had to pull up the electronic docket, see my name on the file, and see that it was listed for 12:30 p.m. Despite this, he or she simply changed the time and allowed the court to proceed with a hearing without mentioning anything to the judge. When I arrived, I spoke to the woman from earlier who pulled the physical file. Right on top was the issue. The form rescheduling the hearing clearly listed “8:00 a.m.” Unfortunately, that form doesn’t go to anyone. The form that went to me, my client, and my client’s family said “12:30 p.m.”

As a former law clerk, I know these things happen. They shouldn’t, but they do. Clearly, it was a clerical error. Regardless, now I was in a bind. One of my clients had retained me to conduct the hearing. I had prepared for the hearing, and planned to address the lack of merit to the case, as well as the high bond set on my client. After speaking to the DA, she would not agree to a new hearing. She argued it would not be proper.

I managed to get the clerk to put my file on top of the pile. I explained, as succinctly as possible, the situation to the judge there that afternoon. He agreed with the DA. “Let’s send this case up clean,” he said to me and the prosecutor. He didn’t want to get involved in this procedural snafu.

I had to explain the mishap to my client’s family. Luckily, I was angrier than they were. I told them they could roll the fee into the next court appearance, which they were fine with.

It’s one thing to lose at a hearing. That happens all the time. But to lose the opportunity just felt wrong.

This sounds like a painful situation, glad it was resolved in a friendly manner. I’m actually more curious about bill per appearance in criminal cases. If they choose not to pay you for future appearances, in many cases the Court won’t care and you’re still on the hook for the appearances. In addition, telling clients to either take a deal or pay you for another appearance seems like it would leave a bad taste in the clients mouth, or at least undue pressure on taking a deal. I would be curious to hear your thoughts.

In PA there is a preliminary hearing level (which was where this case was) and then a trial court level. Most attorneys charge a fee for the preliminary hearing level (which is what we do) and then another fee for the trial level. Attorneys have to file a separate appearance at the trial court level, so if they don’t retain you a second time, the appearance doesn’t carry over. We have been doing a flat fee at the trial level so far. But I know a lot of attorneys will say that it’s one price for pre-trial (motions, plea negotiations, plea court) and then a second fee for trials.

Guest

My thoughts:
1. Never antagonize the judge or prosecutor, especially over scheduling mixups.
I would not have even asked the judge for a do over (and I wouldn’t have granted it if I was the judge).

2. The client isn’t paying you for your time or efforts; they are paying you for a good outcome. Of course you should state, both verbally and in writing, that you cannot promise or guarantee any specific outcome; but from the client’s perspective, this is what they are paying for. Nothing has happened so far on the case. No offer has been made. I would figure out the client’s expectations, figure out what the outcome is likely to be (an experienced criminal lawyer can usually tell the range of realistic outcomes from the first phone call). If the client’s expectations meet reality, you will have a happy client who is happy to pay your fee.

An interesting situation and some interesting comments. All have some merit, depending on the dynamic of the situation, ranging from how desperately the defendant wants out of jail to what can be reasonably anticipated as an outcome. Since you understandably have omitted much of the background detail, it’s impossible to say.

But there is one concern that you should consider, regardless of the underlying case. You don’t want to gain a reputation as a lawyer who can be screwed with and won’t stand up for yourself or your clients. While it may serve to annoy the judge and prosecutor, sometimes it’s necessary to piss them off so that you establish your bona fides as a lawyer who is not afraid to do so when necessary.

Most young lawyers are scared to death of angering a judge or prosecutor, as they won’t get the plea offer they desire. I disagree on two levels, first that they are overly concerned about plea offers (and particularly those they think come from the kindness of prosecutors) rather than plea offers stemming from the prosecutor’s fear that you, as a hard-working, thoughtful and fearless defense lawyer, might beat them at trial. Second, that lack of dislike toward you (because they aren’t inclined to actually like you) is more important than respect for you.

As far as reputations go, I would much prefer to be respected than not disliked.